Davis v. United States Brief Amicus Curiae

    In the

gmpmttr Court of tl?r Stairs
O ctober T erm , 1972 

No. 71-6481

Clifford H . D avis,

v.
Petitioner,

U nited  S tates of A m erica ,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 72-95

L ew is S. T ollett , Warden,

v.
Petitioner,

W illie  L ee H enderson ,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE

J ack  Greenberg 
J ames M. N abrit, III 
Charles S teph en  R alston 

10 Columbus Circle 
New York, N.Y. 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Inc., as Amicus Curiae



I N D E X

Interest of Am icus.............................................................. 2

Summary of Argument................    3

A rgum ent  ............       4

I— The Requirements for Finding a Waiver of 
a Fundamental Constitutional Right in Both 
State and Federal Courts Require an A f­

PAGE

firmative Showing That the Defendant Him­
self Acquiesced in Their Non-Assertion.......  5

II— The Johnson-Fay Requirements Apply With 
Full Force to Jury Discrimination Claims in 
Both State and Federal Courts....................... 7

III—Any Rule Imposing an Automatic Forfeiture 
for Failure to Comply With Rules of Pro­
cedure Is Particularly Inappropriate in Jury
Discrimination Cases........................................  17

Co n c l u sio n .......................................... .............................................  22

T able oe A uthorities

Cases:

Alexander v. Louisiana, 405 U.S. 625 (1972) .2, 8,10,13

Ballard v. United States, 329 U.S. 187 (1946)  ............ 13
Boykin v. Alabama, 395 U.S. 238 (1969) ............ ....... ..10,11

Carmical v. Craven, 457 F.2d 582 (9th Cir. 1971) 
Carnley v. Cochran, 369 U.S. 506 (1962) ...........

,8,18 
11



11

Carter v. Jury Commission, 396 U.S. 320 (1970) .........2,13
Cassell v. Texas, 339 U.S. 282 (1950) ...................   10
Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964) ....    20

Fay v. New York, 332 U.S. 261 (1947) ............ ..............  13
Fay v. Noia, 372 U.S. 391 (1963) ........ ............ ........... passim
Fernandez v. Meier, 408 F.2d 974 (9th Cir. 1969) ____ 14
Frazier v. United States, 335 U.S. 497 (1948) ...............  13

Glasser v. United States, 315 U.S. 60 (1941) ......    16

Hanratty v. United States, 218 F.2d 358 (5th Cir. 1955) 13
Henderson v. Tollett, 459 F.2d 237 (6th Cir. 1972) ..... 7, 8
Henry v. Mississippi, 379 U.S. 443 (1965) ....................  7
Higgins v. United States, 160 F.2d 222 (D.C. Cir. 1946) 13
Hill v. Texas, 316 U.S. 400 (1942) ................. ...... ..........  10
Humphrey v. Cady, 405 U.S. 504 (1972) .......................3,7, 8

Jackson v. Denno, 378 U.S. 368 (1964) ........... ........ ........  7
Johnson v. Zerbst, 304 U.S. 458 (1938) .................... passim

Kaufman v. United States, 394 U.S. 217 (1969) .. .....  6

Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) .......... 6

McNeil v. North Carolina, 368 F.2d 313 (4th Cir. 1966) 8
Miranda v. United States, 255 F.2d 9 (1st Cir. 1958) .... 13

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) ................... 18
Neal v. Delaware, 103 U.S. 370 (1881) ...........   9
Norris v. Alabama, 294 U.S. 587 (1935) ........................  9

Patton v. Mississippi, 332 U.S. 463 (1947) ......... .........  2,8
Peters v. Kiff, 407 U.S. 493 (1972) ...................... ..... . 16
Pierre v. Louisiana, 306 U.S. 354 (1939) ....... ................ 10

PAGE



Ill

Rabinowitz v. United States, 366 F.2d 34 (5th Cir.
1966) ........................................ ........................................  19

Rice v. Olson, 324 U.S. 786 (1945) ................................ 10,11

Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) .......  18
Sanders v. United States, 373 U.S. 1 (1963) .......6, 9,14,16
Scales v. United States, 367 U.S. 203 (1961) ................. 13
Shotwell Manufacturing Co. v. United States, 371 U.S.

341 (1963) ........ ............................................. -.12,13,14,15
Smith v. Yeager, 465 F.2d 272 (3rd Cir. 1972) ............. 19
Sobol v. Perez, 289 F.Supp. 392 (E.D. La. 1968) ______ 18
Strauder v. West Virginia, 100 U.S. 303 (1880) ..... .....  8

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) ...... 13

United States ex rel. G-oldsby v. Harpole, 263 F.2d 71
(5th Cir. 1959) ............... ........ ................ „ .....................  20

United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th 
Cir. 1962) .........................................................................  20

Wade v. Yeager, 377 F.2d 841 (3rd Cir. 1967) ............... 8
Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964) __ 8, 9, 20
Winters v. Cook, 466 F.2d 1393 (5th Cir. 1972) ..........11,20

PAGE

Statutes:

28 U.S.C. §§ 1861-1864 .................... ............................ 4 5,19

28 U.S.C. § 1867 .................................................................  15

28 U.S.C. § 2254 ................................... .............................. 4

28 U.S.C. § 2255 ................ .......... ..........................4,12,13,15

Fed. Rules Crirn. Proe., Rule 12(b) (2) ...A, 12,13,14,15,16



In the

(ta rt it! tljj> States
O ctober T erm , 1972 

No. 71-6481

Clifford H . D avis,

v.
Petitioner,

U nited  S tates of A merica ,
Respondent.

on petition  for w rit  of certiorari to th e
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 72-95

L ew is S. T ollett, Warden,
Petitioner,

v.

W illie  L ee H enderson ,

Respondent.

on petition  for w rit  of certiorari to th e  
united  states court of appeals for th e  sixth  circuit

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE



2

Interest of Amicus*

The NAACP Legal Defense and Educational Fund, Inc., 
is a non-profit corporation, incorporated under the laws of 
the State of New York in 1939. It was formed to assist 
Negroes to secure their constitutional rights by the prosecu­
tion of lawsuits. Its charter declares that its purposes in­
clude rendering legal aid gratuitously to Negroes suffering 
injustice by reason of race who are unable, on account of 
poverty, to employ legal counsel on their own behalf. The 
charter was approved by a New York Court, authorizing 
the organization to serve as a legal aid society. The 
NAACP Legal Defense and Educational Fund, Inc. (LDF), 
is independent of other organizations and is supported by 
contributions from the public. For many years its at­
torneys have represented parties in this Court and the 
lower courts, and it has participated as amicus curiae in 
this Court and other courts, in cases involving many facets 
of the law.

Over a long period of time, LDF attorneys have han­
dled, here and in other courts, many cases involving the 
unconstitutional exclusion of blacks from jury venires.** 
Throughout this period, LDF has handled many jury dis­
crimination cases in which our help has been sought only 
after blacks have been convicted and in which the issue 
was not raised at trial by their then counsel. This experience 
has demonstrated to us the vital importance of the avail­
ability of federal post-conviction remedies as often the only

* Letters of consent from counsel for the petitioners and the 
respondents in both of these cases have been filed with the Clerk 
of the Court.

** E.g., Patton v. Mississippi, 332 U.S. 463 (1947); Sims v. 
Georgia, 389 U.S. 404 (1967) ; Carter v. Jury Commission of 
Greene County, 396 U.S. 320 (1970) ; Turner v. Fouche, 396 U.S. 
346 (1970) ; Alexander v. Louisiana, 405 U.S. 625 (1972).



3

available mode to vindicate the most blatant violations of 
a fundamental right. Therefore, LDF has a particular in­
terest in the outcome of these cases since they raise serious 
questions as to the continued vitality of both habeas corpus 
and motions under 28 U.S.C. § 2255 as vehicles by which 
LDF may carry out its purpose.

Summary of Argument

I.

This Court has held, in a consistent line of cases from 
Johnson v. Zerbst, 304 U.S. 458 (1938), through Fay v. 
Noia, 372 U.S. 391 (1963) and Sanders v. United States, 
373 U.S. 1 (1963), to Humphrey v. Cady, 405 U.S. 504 
(1972), that a waiver of fundamental constitutional rights 
can not be presumed from a procedural default. Rather, 
in a proceeding for post-conviction relief, a federal court 
can bar relief on the basis of waiver only upon a finding 
that the defendant himself made a deliberate and under­
standing decision not to raise the issue at trial.

II.

These principles apply with full force to claims of jury 
discrimination arising under the Constitution. In neither 
of the two cases before the Court has such a deliberate 
choice on the part of the defendant not to raise a challenge 
to the indictment on grounds of racial discrimination been 
demonstrated.

III.

Strong considerations of public policy militate against 
the imposition of any rule of forfeiture that would bar black 
defendants from obtaining post-conviction relief from un­



4

constitutional jury selection procedures. Lower federal 
courts have recognized that failure of defense counsel, 
without acquiescence by defendants, to raise this issue 
cannot constitute waiver. Any other holding would result 
in the undermining of 90 years of efforts of this Court to 
protect the rights of black defendants indicted and con­
victed by a white-dominated system of justice.

ARGUMENT

These two cases present to the Court the question whether 
the rule regarding waiver established by Johnson v. Zerhst, 
304 U.S. 458 (1938), and reiterated in Fay v. Noia, 372 
U.S. 391 (1963), apply in cases raising the claim that blacks 
have been excluded from grand juries in violation of the 
Fifth and Fourteenth Amendments to the Constitution of 
the United States. Thus, they involve, in the context of 
both federal and state prosecutions, the standards by which 
a federal court on collateral relief should determine whether 
there has been an effective waiver of the right to object 
to the denial of this fundamental constitutional right by 
failure to comply with procedural rules as to when such a 
challenge should be made. In Davis v. United States, No. 
71-6481, the issue is whether the simple failure to comply 
with Rule 12(b)(2) of the Federal Rules of Criminal 
Procedure in and of itself constitutes a waiver barring 
relief in a 28 U.S.C. § 2255 proceeding. Tollett v. Hender­
son, No. 72-95, involves the question as to whether the 
failure to comply with a similar Tennessee court rule also 
militates against a defendant being able to raise the claim 
on habeas corpus brought pursuant to 28 U.S.C. § 2254.

Despite the fact that one case is a federal and the other 
is a state prosecution, amicus urges that both are governed 
by the rule laid down in Johnson v. Zerhst, supra, that



5

“ ‘courts indulge every reasonable presumption against 
waiver’ of fundamental constitutional rights” and that 
they “ ‘do not presume acquiescence in the loss of funda­
mental rights.’ A  waiver is ordinarily an intentional re­
linquishment or abandonment of a known right or privi­
lege.” 304 U.S. at 464.

I

The Requirements for Finding a Waiver o f  a Funda­
mental Constitutional Right in Both State and Federal 
Courts Require an Affirmative Showing That the De­
fendant Himself Acquiesced in Their Non-Assertion.

Johnson v. Zerbst itself was a collateral attack on a 
federal conviction, the issue being whether the defendant 
had waived his right to representation by counsel guar­
anteed by the Sixth Amendment to the Constitution of 
the United States. The lower courts had essentially held 
that the procedural default of the defendant in failing to 
request appointment of counsel at trial barred relief in 
the collateral proceeding. This Court unequivocally re­
jected such a view. Rather, it held that in any case the 
question was whether there had been “an intelligent 
waiver” of the right involved and that that finding could 
be made only after an examination of the particular facts 
and circumstances surrounding the case demonstrated that 
the defendant affirmatively decided to forego the right 
in question. Thus, the mere failure affirmatively to assert 
the right was not enough to bar collateral relief. 304 U.S. 
at 464.

The Johnson rule was reaffirmed in the strongest pos­
sible terms in Fay v. Noia, supra, which involved a state 
prosecution, and which held that in a proceeding for col­



6

lateral relief in federal eourt, waiver could not be pre­
sumed by failure to pursue or follow a particular rule of 
procedure. To follow such a rule of forfeiture would be 
to “ introduce legal fictions into federal habeas corpus.” 1 
Thus, the inquiry required by a federal court is to deter­
mine :

If a habeas applicant, after consultation with compe­
tent counsel or otherwise, understandingly and know­
ingly forwent the privilege of seeking to vindicate his 
federal claims in the state courts, whether for stra­
tegic, tactical, or any other reasons that can fairly 
be described as a deliberate bypassing of state pro­
cedures. . . .
372 U.S. at 439.

Then, and only then, “ it is open to the federal court on 
habeas to deny him all relief.” Hid. The court reempha­
sized that the standard required “the considered choice of 
the petitioner. . . .  A  choice made by counsel not partici­
pated in by the petitioner does not automatically bar relief.”

Shortly after the decision in Fay, this Court completed 
the circle by making it clear that the Fay standards ap­
plied equally in a 28 U.S.C. § 2255 proceeding. Sanders 
v. United States, 373 U.S. 1, 18 (1963). And see, Kauf­
man v. United States, 394 U.S. 217, 228 (1969). As recently 
as last term, this Court, by a unanimous seven-member 
panel, reaffirmed that the requirements of Johnson and 
Fay were still the law and stated: “ If the District Court 
cannot find persuasive evidence of a knowing and intel­

1 As the Fifth Circuit has put it, in a ease involving jury dis­
crimination: “ The ‘waiver’ asserted in this ease is simply a di­
aphanous euphemism for forfeiture of rights resulting from a 
procedural default.” Labat v. Bennett, 365 F.2d 698, 707 (5th 
Cir. 1966).



7

ligent waiver on the part of petitioner himself, then the 
Court should proceed to consider petitioner’s constitutional 
claims.” Therefore, a defendant “ is not necessarily bound 
by the decision or default of his counsel.”  Humphrey v. 
Cady, 405 U.S. 504, 517 (1972).

II

The Johnson-Fay Requirements Apply With Full 
Force to Jury Discrimination Claims in Both State and 
Federal Courts.

We have set out above the general rule for determining 
whether there has been a waiver of a fundamental consti­
tutional right. In its terms, the Johnson-Fay rule applies 
to all such rights without exception,2 and it has in fact 
been applied in a variety of circumstances. See, e.g., 
Jackson v. Denno, 378 U.S. 368, 370 n. 1 (1964) (chal­
lenge to procedural rules governing’ admission of confes­
sions ; the Fay rule provides “ the only ground for which 
relief may be denied in federal habeas corpus for failure 
to raise a federal constitutional claim in the state courts” 
(emphasis added)); Henry v. Mississippi, 379 U.S. 443, 
450 (1965) (objection to unconstitutionally seized ev­
idence) ; Humphrey v. Cady, supra (objection to procedures 
for commitment as a sex crime offender).

It is clear that the same principle also must apply in 
cases involving the right to object to discrimination in 
the selection of juries. It is no overstatement to assert 
that perhaps no other constitutional right has been recog­

2 “Nothing in Fay v. Noia suggests that the Supreme Court in­
tended to establish a hierarchy of constitutional protections and 
limit the applicability of the classic definition of waiver to those 
rights occupying the highest positions.” Henderson v. Tollett, 459 
F.2d 237, 239 (6th Cir. 1972).



8

nized by this Court for so long as being absolutely funda­
mental to the requirements of due process and equal pro­
tection. From Strauder v. West Virginia, 100 U.S. 303 
(1880) through Alexander v. Louisiana, 405 U.S. 625 (1972), 
this Court has held repeatedly that racial discrimination 
in the selection of juries violates the most fundamental 
right to be tried by a system of justice free of racial bias. 
See also, Patton v. Mississippi, 332 U.S. 463 (1947), and 
cases cited at 465 n. 3. The right fully encompasses in­
dictment by grand jury, Alexander v. Louisiana, 405 U.S. 
at 626 n. 3.

The applicability of Johnson and Fay has been duly rec­
ognized by federal courts when faced with questions of 
jury discrimination by states in violation of the Fourteenth 
Amendment. Indeed, the circuit courts have been unanimous 
in holding that the right is of the fundamental character 
contemplated by Johnson, and that therefore the failure to 
comply with state procedural rules will not in and of itself 
result in a waiver of the right to object to discrimination. 
Eather, the burden is on the state to demonstrate by affirma­
tive evidence that the decision not to challenge the com­
position of either the grand or petit jury was deliberately 
made by the defendant himself with full understanding of 
the consequences thereof, free from any countervailing co­
ercive pressures. See, e.g., Wade v. Yeager, 2>11 F.2d 841 
(3rd Cir. 1967) ; McNeil v. North Carolina, 368 F.2d 313 
(4th Cir. 1966); Whitus v. Balhcom, 333 F.2d 496 (5th Cir. 
1964); Henderson v. Tollett, 459 F.2d 237 (6th Cir. 1972); 
Carmical v. Craven, 457 F.2d 582 (9th Cir. 1971).

We urge, therefore, that the Sixth Circuit in Tollett was 
correct in its refusal to impose a rule of forfeiture, par­
ticularly in view of the facts of the case. Both the district 
court and the court of appeals conducted precisely the in­
quiry required by Johnson„ Fay, and Humphrey. They



9

found that not only the petitioner, but his counsel were 
unaware of even the possibility of challenging the composi­
tion of the grand jury, and that the idea would not have 
occurred to any Tennessee lawyer at the time. Therefore, 
there was clearly no decision at all on the matter, let alone 
one made for tactical reasons.3

None of the State’s grounds for escaping the application 
of Johnson and Fay are persuasive. The argument that 
the jury selection methods used in 1948 were not uncon­
stitutional under the prevailing law at the time is simply 
wrong. No blacks ever served on a grand jury in the his­
tory of the county until 1953, five years after Henderson’s 
indictment, in a county more than 25% black. This was 
precisely the kind of facts held to establish a prima facie 
case of jury discrimination in Norris v. Alabama, 294 U.S. 
587 (1935), and Neal v. Delaware, 103 1T.S. 370 (1881), de­
cided thirteen and sixty-seven years, respectively, before 
the indictment was handed down in this case.

The argument that Henderson’s counsel may not have 
raised the issue because he decided it would be futile to 
do so because of recent decisions of the Tennessee Supreme 
Court is not supported by the record. To the contrary, it

8 Indeed, with one exception, it is difficult to imagine any con­
stitutionally acceptable tactical reason for not challenging racial 
discrimination in the composition of juries. Fear of arousing 
hostility in the white community on the part of counsel is not, of 
course, an acceptable reason for not making a challenge, see Whitus 
v. Balkcom, 333 F.2d 496 (5th Cir. 1964), cf., Fay v. Noia, 372 
U.S-. at 439-440, despite the State of Tennessee’s assertions to the 
contrary here (Brief for Petitioner in No. 72-95, p. 6). The one 
exception would be a case where counsel and the defendant delib­
erately decided not to object to the array on the hope of getting 
a second opportunity to contest a conviction if an appeal on other 
grounds failed. Such a state of facts might well amount to an 
abuse of the remedy of habeas corpus or 2255 within the meaning 
of Sanders v. United States, 373 U.S. 1, 9-11 (1963). In neither 
of the two cases before the court was such an abuse either pleaded 
or proven.



10

simply never occurred to counsel that any such claim 
existed.4

Finally, the fact that Henderson pleaded guilty to the 
crime charged does not put him in a different position 
vis-a-vis his right to challenge his indictment than a de­
fendant who has gone to trial. This Court has repeatedly 
held that the right to challenge an unconstitutional grand 
jury is independent of the right to challenge the petit jury, 
and that the same principles apply to each. See, Alexander 
v. Louisiana, 405 TJ.S. at 626, n. 3. Thus, it has rejected the 
position that discrimination in the selection of the grand 
jury is of no moment since an indictment is not a convic­
tion and any defect is cured by trial before a constitu­
tionally acceptable petit jury. Pierre v. Louisiana, 306 TJ.S. 
354 (1939). See also, Hill v. Texas, 316 TJ.S. 400, 406 (1942). 
No more than does a judgment of guilty by a jury, after 
a full trial (see, Cassell v. Texas, 339 TJ.S. 282 (1950), does 
a plea of guilty wipe out the action of an unconstitutional 
grand jury.5

Furthermore, it cannot be maintained that the plea of 
guilty itself operated as a waiver of all objections to con­
stitutional infirmities in the proceeding. Such a contention

4 Even if supported by the evidence, the argument proves too 
much. Surely, counsel’s decision, not acquiesced in by the defen­
dant, not to raise a valid issue because he thought it could not be 
won, is not a decision made by the defendant with knowledge of 
what he is surrendering as contemplated by Johnson and Fay.

5 I f  anything, the opposite should be the case. I f  in fact a defen­
dant has had a trial before a constitutionally adequate petit jury 
it would be at least appear that there is not the kind of abroga­
tion of Fourteenth Amendment rights of black defendants by the 
entire judicial system. This court has indicated that particular 
attention must be given to guilty plea cases to ensure that there 
has been no violation of constitutional rights, precisely because the 
defendant has given up the procedural protections inherent in a 
jury trial. See, Boykin v. Alabama, 395 TJ.S. 238, 242-44 (1969) ; 
Bice v. Olson, 324 U.S. 786 (1945).



11

was specifically rejected by this Court in Rice v. Olson, 324 
U.S. 786 (1945). There, the Court rejected the position 
that when a defendant pleads guilty it can be presumed that 
he “ ‘absolutely’ and finally” waived his right to be repre­
sented by counsel. 324 U.S. at 788. It was noted that the 
holding of the state court was based on the proposition that 
such a plea “ ‘operates as a waiver of any defense, and 
. . . with it, of course, the constitutional guarantees with 
respect to the conduct of criminal prosecutions.’ ” Id., n. 2.

This Court held to the contrary, pointing out that such 
a presumption could not be maintained in the face of an 
allegation by the defendant in his petition for collateral 
relief that he did not waive the right in question. That 
allegation “ squarely raised a question of fact” that could 
not be resolved by any presumption drawn from the bare 
fact of a guilty plea. Rather, it must be “determined by 
evidence” going to the issue, inter alia, of whether the de­
fendant waived his right “ intelligently and under stand­
ingly.” Id. at 788-789. See also, Carnley v. Cochran, 369 
U.S. 506, 515-516 (1962); Boykin v. Alabama, 395 U.S. 238 
(1969).

In Tollett, of course, the precise issue is whether Hen­
derson “intelligently and understanding^” gave up his 
right to challenge the composition of the grand jury. No 
more than was the case in Rice v. Olson can that question 
be resolved by reliance on a presumption attaching to a 
plea of guilty. Rather, the courts below made the inquiry 
mandated by Rice and determined on the basis of the ev­
idence that no understanding waiver had been made. Win­
ters v. Cook, 466 F.2d 1393 (5th Cir. 1972).

In summarizing our position with regard to Tollett, we 
urge that the courts of appeals have been correct in decid­
ing waiver questions pursuant to the standards estab­



12

lished in Johnson and Fay. This court should therefore 
affirm the Sixth Circuit’s decision, and uphold the courts 
of appeals’ approach in cases raising the issue of the 
availability of habeas corpus relief in state jury discrim­
ination cases.

Paradoxically, in cases involving federal prosecutions, 
where relief under § 2255 is sought on the basis of jury 
discrimination, the lower courts have been much less con­
sistent in applying the standards of Johnson and Fay. 
The Fifth Circuit in particular, which has been diligent 
in protecting the rights of state prisoners from the appli­
cation of a strict rule of waiver for non-compliance with 
procedural rules, has, on the other hand, rigidly applied a 
rule of forfeiture in federal prosecutions regardless of the 
circumstances. Thus, in the Davis case the court, relying 
on a series of earlier decisions, held simply that failure to 
comply with Rule 12(b)(2) of the Federal Rules of Crim­
inal Procedure, operated as an automatice forfeiture of the 
right of a black defendant to object on constitutional 
grounds to the exclusion of blacks from the grand jury 
that indicted him.

Amicus urges that there is no basis in law or reason for 
this inconsistent result, but that it flies in the face of this 
Court’s decisions from Johnson through Humphrey. The 
Fifth Circuit has mechanically applied the decision in 
Shotwell Manufacturing Co. v. United States, 371 U.S. 341 
(1963), to all instances where a federal defendant has not 
challenged his jury prior to the time of trial, and we con­
tend that this automatic reliance on Shotwell is misplaced 
and that that case is distinguishable.

In Shotwell, corporate defendants raised a question as 
to the legality of the composition of the jury on the appeal 
itself some years after the original trial. The grounds for



13

the challenge in Shotwell were based on alleged violations 
of the federal jury statutes and the defendants relied upon 
this Court’s supervisory power over the administration of 
those statutes in the lower federal courts. See, Ballard v. 
United States, 329 U.S. 187 (1946). The claim was ap­
parently not made that members of the defendants’ own 
class were excluded from jury service, but that, because 
of improper administrative action, the statutes’ require­
ment that a cross-section of the community be empanelled 
was not met. Thus, under the law prevailing at the time, 
the claim made in Shotwell was evidently not viewed by 
this Court as one of constitutional dimension.6 Similarly, 
the cases cited with approval in Shotwell, 371 U.S. at 362, 
all deal with challenges based on violations of federal 
statutory rights as declared by this Court in cases such as 
Ballard v. United States, supra, and Thiel v. Southern 
Pacific Company, 328 TJ.S. 217 (1946).7

6 W e do not wish to imply by this discussion of Shotwell and 
the cases it relied upon that we do not believe that there is a 
right guaranteed by the Constitution to a jury that represents a 
reasonable cross-section of the community. See, Carter v. Jury 
Commission, 396 U.S. 320, 330 (1970). Indeed, our contention 
would be to the contrary if these cases raised that issue, and we 
have urged that position before this Court in Alexander v. Louisi­
ana, supra. The point here, however, is that that proposition was 
not firmly established at the time of Shotwell. See, Fay v. New 
York, 332 U.S. 261 (1947).

7 The cases cited with approval in Shotwell, 371 U.S. at 362, all 
raised claims of statutory violations, and evidently did not urge 
constitutional ones that were deemed to be substantial. E.g., 
Frazier v. United States, 335 U.S. 497 (1948) and Higgins v. 
United States, 160 F.2d 222 (D.C. Cir. 1946) challenged juries 
composed largely of government employees. Hanratty v. United 
States, 218 F.2d 358 (5th Cir. 1955) and Miranda v. United States, 
255 F.2d 9 (1st Cir. 1958) challenged the exclusion of women. In 
Scales v. United States, 367 U.S. 203 (1961), the challenge was 
based on procedures alleged to be inconsistent with the statutes; 
although Rule 12(b) (2) was referred to, the trial court, the Court 
of Appeals, and this Court all also rejected the claim on the merits. 
Id. at 259.



14

Thus, this Court in Shotwell was not presented with a 
case raising the question of whether the Johnson standard 
of waiver applied in a collateral proceeding by a black 
defendant seeking to challange jury discrimination on con­
stitutional grounds arising from the exclusion of blacks 
from juries. Therefore, it is not surprising that the same 
court that decided Fay two months later and that in the 
same term held in Sanders v. United States, 373 U.S. 1 
(1963) that the Johnson-Fay standards applied in federal 
collateral proceedings, did not discuss the applicability of 
Johnson v. Zerbst in Shotwell. For if Shotwell and Rule 
12(b)(2) are read the Fifth Circuit’s way, as creating a 
rule of forfeiture, they are clearly in conflict with Johnson, 
Fay and Sanders.

Sanders involved the standards for deciding whether a 
defendant was barred from raising a constitutional claim 
in a second § 2255 petition that might have been raised in 
an earlier one. The district court applied what was essen­
tially a rule of forfeiture, and held that the failure to 
raise the issue at the earlier opportunity operated as a bar. 
Such a ruling is precisely analogous to the Fifth Circuit’s 
position that a failure to comply with Rule 12(b)(2) 
operates as a similar bar. This Court in Sanders rejected 
such a rule, and applied the Fay holding that a deliberate 
decision on the part of the defendant not to raise the issue 
for a tactical or other reason must be shown. Thus, the 
Ninth Circuit correctly recognized that Sanders controlled 
in its holding that a failure to comply with 12(b) (2) did 
not operate as an automatic forfeiture of the right to chal­
lenge jury discrimination. Fernandez v. Meier, 408 F.2d 
974 (9th Cir. 1969).

The same ground we have discussed for distinguishing 
Shotwell also leads to a conclusion that 12(b)(2) does not 
conflict with Johnson and Fay. The rule by its terms allows



15

a court to find no waiver “ for cause shown.” That language 
must he read in conformity with the Johnson-Fay rule to 
mean that sufficient cause is established by: (1) the asser­
tion of a constitutional challenge to the grand jury; and 
(2) the determination by the court that the defendant 
himself did not participate “knowingly and understand- 
ingly” in a deliberate decision not to raise the issue before 
trial. Thus, whatever the validity of a rule that would 
require that ordinarily statutory challenges to a grand 
jury be made pursuant to 12(b),8 challenges on constitu­
tional grounds must be subject to a different standard.

The Fifth Circuit apparently gave no consideration to 
this distinction in Davis, for his motion filed under § 2255 
specifically challenges his grand jury “as being an uncon­
stitutional array” since it did not meet the requirements 
of “ the Fifth Amendment of the United States Constitu­
tion” as well as those of the federal jury statutes, 28 U.S.C. 
§§ 1861-1864. Thus, the Fifth Circuit has adopted precisely 
the rule rejected by this Court in Johnson v. Zerbst, and 
its reliance on Shotwell and its reference to Rule 12(b) 
amounts to a holding that the simple failure to comply

8 We note in passing that the 1968 Amendments to the federal 
jury statutes seem to recognize the distinction between a challenge 
based on noncompliance with the statutes and challenges based on 
other grounds and the procedural requirements for mounting such a 
challenge. 28 U.S.C. § 1867 sets forth the required procedure for 
challenging noncompliance with sections 1861-1864 and requires 
that such challenges be made before the voir dire examination be­
gins or earlier if the noncomplianee was or could have been dis­
covered. Section 1867(e) states that “ the procedures prescribed 
by this section shall be the execlusive means by which a person 
accused of a Federal crime . . . may challenge any jury on the 
ground that such jury was not selected in conformity with the 
provisions of this title.” The section then goes on to state that it 
does not preclude the pursuit of other remedies to vindicate any 
other law, including the Fifth Amendment to the Constitution, 
prohibiting racial discrimination in the selection of juries.



16

with that rule in and of itself constitutes a waiver of the 
constitutional right involved.

It is clear that the lower courts did not make the inquiry 
or find the facts required by Johnson, Fay and Sanders. 
The district court placed the burden on the defendant 
to prove somehow that he was not aware of his constitu­
tional rights, and presumed that because of his present 
legal knowledge and the fact that he had a capable lawyer, 
he must have known of them. Such a presumption stands 
Johnson on its head, and is, of course, improper. See, 
Glasser v. United States, 315 U.S. 60, 70-72 (1942), holding 
that an assistant United States attorney could not be pre­
sumed to know of his right to be represented by inde­
pendent counsel and to have waived it by inaction.

Finally, the lower court’s holdings that some special 
prejudice must be shown in a racial exclusion case in order 
to escape the requirements of 12(b)(2) cannot be sus­
tained. Whatever may be the validity of that part of the 
Shotwell holding as it relates to the right of persons not 
of the excluded class to challenge noncompliance with the 
federal jury statutes, it cannot be the rule in the case of 
a black defendant challenging the unconstitutional exclu­
sion of blacks.

Indeed, it is clear that a defendant of any race can chal­
lenge the exclusion of blacks without any showing of 
particularized prejudice to him, Peters v. Kiff, 407 U.S. 
493 (1972). In Peters, this Court rejected, in the context 
of a state prosecution, the argument that a white defen­
dant had to show such prejudice because he had not 
challenged the exclusion of blacks from his jury until he 
sought collateral relief. The Court held that the funda­
mental impossibility of demonstrating such prejudice made 
it unfair to place such a burden on the defendant in a 
situation where the state was responsible for the continua­
tion of practices that were unconstitutional.



17

III

Any Rule Imposing an Automatic Forfeiture for 
Failure to Comply With Mules of Procedure Is Partic­
ularly Inappropriate in Jury Discrimination Cases.

In parts I and II of this brief, we have set out the 
general rule regarding the waiver of constitutional rights 
and have explained why it applies to jury discrimination 
cases under the rationale of Johnson and Fay since they 
involve a fundamental constitutional right as contemplated 
by those decisions. Here we urge that other considerations 
peculiar to the problems raised by racial discrimination 
in the selection of juries dictate that as a matter of policy 
a strict rule of forfeiture may not he permitted. This is 
because jury discrimination by its nature has been a 
systematic, institutionalized defect in the administration 
of justice in this country, despite 90 years of pronounce­
ments by this Court.

Amicus has a special concern with the problem of racial 
discrimination in the selection of both grand and petit 
juries, not only in the South hut throughout the United 
States. In our statement of interest, supra, we have noted 
a long-standing involvement in jury discrimination prob­
lems in cases before not only this Court hut in lower courts, 
both state and federal. Because of our experience, we are 
often contacted by black prisoners who wish assistance in 
challenging their indictments or convictions because of 
such discrimination. These requests for help show a con­
sistent pattern which is typified by the two cases before 
the Court.

A black defendant, without resources and with little 
knowledge of his legal rights at the beginning of his prose­
cution, is represented by either retained or coxirt-appointed



18

counsel, usually white. He is indicted and goes to trial, 
at which point he may for the first time realize that he is 
faced with an all or virtually all-white jury array. Of 
course, he has had no way of knowing the racial composi­
tion of the grand jury that indicted him. In most instances, 
his counsel does not mount a challenge to the jury system 
as it relates either to the grand or petit jury and the black 
defendant becomes aware of his right to do so only after 
he has been convicted and incarcerated and subsequently 
becomes more acquainted with his legal rights.

The reasons why jury discrimination challenges have not 
been made more often, despite the evident fact that they 
could have been in virtually every prosecution brought in 
southern states and in a substantial portion of those 
brought in northern states, are not difficult to ascertain. 
The number of black lawyers and white lawyers cognizant 
of civil rights issues, those who would be most apt to be 
concerned about the problem, has been and remains small, 
particularly in southern states. See, N.A.A.C.P. v. Button, 
371 TJ.S. 415, 443 (1963), Sanders v. Russell, 401 F.2d 241 
(5th Cir. 1968), Sobol v. Perez, 289 F.Supp. 392 (E.D. La. 
1968).

Thus, black defendants are in the main represented in 
the first instance by white attorneys whose main experience 
is with representing white clients. Unfortunately, these 
lawyers simply do not raise jury discrimination issues in 
the large run of cases. In the northern states, and now in 
some southern states, this may be because of the failure to 
recognize that there in fact may be a problem. This is not 
surprising because the typical northern situation involves 
not so much the kind of deliberate discrimination typical 
of many southern jurisdictions, but rather the use of vari­
ous devices that have the effect of excluding black jurors. 
See, Carmical v. Craven, 457 F.2d 582 (9tli Cir. 1971),



19

Smith v. Yeager, 465 F.2d 272 (3rd Cir. 1972). With few 
exceptions, it has only been in recent years that snch prac­
tices have come to light and their constitutional significance 
has been recognized.

The same pattern, we believe, also explains the relatively 
few challenges on racial exclusion grounds to jury selection 
methods in federal courts. The pattern there again has not 
been by and large deliberate exclusion of blacks but rather 
the utilization of selection methods, such as. the key-man. 
system, which, however inadvertently, have had the effect 
of excluding blacks. See, Rabinowits v. United States, 366 
F.2d 34 (5th Cir. 1966). In Davis v. United States, of 
course, precisely such a contention, together with allega­
tions of deliberate exclusion, was made.9

In southern jurisdictions ignorance of the possibility of 
challenging grand and petit juries has in the past, unfor­
tunately, been coupled with the deliberate neglect or tacit 
acquiescence of white attorneys in the maintenance of an 
exclusionary jury system. Tollett v. Henderson presents 
a vivid example of such a case. Counsel who represented 
Henderson in Tennessee in 1948 frankly admitted that it 
simply never occurred to him to challenge racial discrimi­
nation in the jury selection system. Similarly, Judge Gal- 
breath of the Court of Criminal Appeals of Tennessee, in 
his concurring opinion in respondent’s collateral proceed­
ing in that court, stated:

9 Congress itself has long grappled with problems arising from 
the racially exclusionary effects of key-man and similar systems 
in the federal courts. The result of this concern was the passage 
of the 1968 Jury Selection Act, 28 U.S.C. § 1861 et seq., which sets 
up a random system of selection from sources which are designed 
to produce as full a cross-section of the community as possible. 
With the implementation of this act, jury discrimination problems 
in the federal courts have, with, a few exceptions, been largely elim­
inated. Petitioner Davis, of course, was indicted and tried prior 
to the effective date of the 1968 reform.



20

No lawyer in this State would have ever thought of 
objecting to the fact that Negroes did not serve on 
the Grand Jury in Tennessee in 1948, just as scarcely 
anyone objected to the complete segregation of all pub­
lic and private facilities of any kind in the State until 
the next decade. 459 S.W.2d 176, 179-180:

Similarly, the Fifth Circuit has taken judicial notice of 
the fact that white lawyers simply would not raise the 
issue because of ignorance of the issue, because of fear of 
raising hostility in the community, or because of acquiesc­
ence in the system. See, Untied States ex rel. Goldsby v. 
Harpole, 263 F.2d 71, 82-83 (5th Cir. 1959); Untied States 
ex rel. Seals v. Winum, 304 F.2d 53, 68-69 (5th Cir. 1962); 
Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964); Cobb 
v. Balkeom, 339 F.2d 95 (5tli Cir. 1964) ; Winters v. Cook, 
466 F.2d 1393 (5th Cir. 1972).

In light of these realities, a rule that essentially operates 
as a forfeiture of the right to challenge discrimination in 
the selection of grand, and presumably petit, juries would 
mean that blacks would be condemned to remain in prison 
without recourse even though they were indicted and con­
victed under procedures blatantly unconstitutional, ad­
hered to in the face of decisions of this Court going back 
to 1880. These defendants would be placed in this situation 
through no fault of their own but simply because of de­
fense counsel’s essential acquiescence in the system, or their 
ignorance of the possibility of challenging it.

Thus, these cases concern a fundamental and institu­
tionalized defect in the system of justice that simply can­
not be compared to, for example, a decision in a particular 
case to forego challenging evidence as unconstitutionally 
seized, or a statement as unconstitutionally coerced. It 
would be unconscionable to place the burden of the legal



21

profession’s failure to attack this problem on the shoulders 
of the very persons that this Court has been endeavoring 
to protect for 92 years.

These considerations also require that the prosecution’s 
claim of an interest in the finality of criminal convictions 
be rejected. The problem of jury discrimination is one 
peculiarly within the state’s power to correct. It is not 
a question of the malfeasance or mistake of one police 
officer in seizing evidence, or of an interrogator or prose­
cutor overstepping the bounds set by the Constitution in 
obtaining a confession, on a single judge making an er­
roneous decision as to a constitutional question arising 
from the particular facts of a particular case. Rather, 
an entire system has been maintained with full knowledge 
of its unconstitutionality, with the active participation of 
all elements of the very institutions supposed to be on 
the side of justice, including judges, district attorneys, 
court personnel, and, unfortunately, in many cases defense 
counsel. The institutions of government have chosen to 
violate the Constitution of the United States, not in one 
individual case, but in every case involving every defendant 
brought before it. If any party has waived or forfeited its 
right to insist on a particular interest it is the government 
itself, and this Court should ensure that all persons con­
victed under unconstitutional systems of jury selection be 
able to gain relief, unless they themselves, with full knowl­
edge of the consequences, deliberately chose to forego 
their rights.



22

CONCLUSION

For the foregoing reasons, the decision in No. 71-6481 
should be reversed and that in No. 72-95 affirmed.

Respectfully submitted,

J ack  G reeve erg 
J ames M. N abrit , III 
Charles S teph en  R alston 

10 Columbus Circle 
New York, N.Y. 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Tnc., as Amicus Curiae



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